Superintendent's Memo #139-11

SUBJECT: School Division Requirements Under Title IX: Sexual Harassment also Includes Sexual Violence

On April 4, 2011, Assistant Secretary for Civil Rights, Russlynn Ali, in the U.S. Department of Education’s Office for Civil Rights (OCR), issued guidance regarding sexual violence in the form of a “Dear Colleague” letter. This letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence. The letter also specifies the Title IX requirements applicable to sexual violence. Sexual violence is defined in the letter as physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol or due to an intellectual or other disability. Acts that fall into the category of sexual violence include rape, sexual assault, sexual battery, and sexual coercion; all of which are forms of sexual harassment covered under Title IX.

The letter supplements OCR’s Revised Sexual Harassment Guidance issued in 2001 found at http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html
by providing practical examples and direction regarding the Title IX requirements as they relate to sexual violence. Additionally, it shares proactive efforts and examples of remedies that schools can take to address sexual harassment and violence; including those to end these behaviors, prevent their reoccurrence, and address their effects.

The letter emphasizes that school divisions are required to immediately conduct a prompt, thorough, and impartial investigation separate from any legal investigation in matters regarding sexual violence. It further states that school divisions should use a “preponderance of the evidence” standard of proof when addressing sexual violence. Therefore, if it is more likely than not that sexual violence or harassment occurred, even if there is the slightest likelihood of occurrence, the school division must respond by enacting their obligations under Title IX.

OCR advises school divisions to train school resource officers regarding Title IX grievance and investigative procedures and to instruct them to notify complainants of their right to file a Title IX sex discrimination complaint with the school in addition to filing a criminal complaint. Likewise, a school division should notify a complainant of his/her right to file a criminal complaint, and should not dissuade him/her from doing so either during or after the school’s internal Title IX investigation. Additionally, school resource officers should be instructed to report incidents of sexual violence to the Title IX coordinator if the complainant consents. OCR’s guidance is that school divisions designate one coordinator as having ultimate oversight responsibility under Title IX, and that any other coordinators have titles clearly showing that they are in a supporting role to the senior coordinator. It is the senior or central office Title IX coordinator’s responsibility to oversee all Title IX complaints and identify and address any patterns or systemic problems that arise during the review of such complaints.

In addition to guidance regarding training staff to report sexual violence to appropriate school officials, defining sexual discrimination under Title IX, and conforming grievance procedures to OCR standard of proof, other highlights of this supplemental guidance include:

A school division’s obligation to respond to student-on-student sexual harassment that initially occurred off campus or outside school-sponsored events; including preventing a victim from encountering an alleged perpetrator or from taunting by classmates at school, and

A school division’s obligation to respond to sexual violence, whether the victim or others file a complaint or not, if it knows or reasonably should know of its occurrence